KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS, HOSPITALS AND ALLIED WORKERS (KUDHEIHA WORKERS) V B.O.G GILGIL DAY SECONDARY SCHOL [2013] KEELRC 334 (KLR)
The bottom line
#A Kenyan employment court set aside a judgment because the wrong school was served with the hearing notice, but ordered the defaulting employer to pay costs anyway.
What this practically means
#Executive summary
#Key legal issues
#Whether service of the memorandum of claim and summons was effected
Service was established on a balance of probability since the secretary admitted his personal secretary 'Mercy' received the documents, corroborated by the affidavit of service
The respondent's secretary denied service but admitted that Mercy, named in the affidavit of service as the recipient of the documents on 7.10.2011, was his personal secretary. The court weighed this admission against the affidavit of service sworn on 10.10.2011 and, applying the balance of probability, concluded that the memorandum of claim and summons were duly served.
Whether the hearing notice for 29.01.2013 was properly served
The process server admitted serving the hearing notice on Gilgil Girls Secondary School instead of the respondent, Gilgil Day Secondary School, so the judgment was erroneously entered against the wrong school
The process server conceded that the hearing notice for 29.01.2013 was served on Gilgil Girls Secondary School and not on the respondent, Gilgil Day Secondary School. The claimant had erroneously interchanged the two schools, meaning the judgment was in fact entered against the wrong institution. The respondent was therefore never served to attend the hearing as ordered on 29.01.2013.
Whether the judgment should be set aside despite the respondent's default
The judgment and all processes flowing from it were set aside because the respondent was not served with notice of the hearing, even though its draft statement of response raised triable issues and it had failed to take due steps earlier
The court acknowledged the respondent's failure to take due steps to comply with the rules to defend the case, and that the draft statement of response raised triable issues. Nevertheless, the decisive factor was that the hearing proceeded when the respondent had not been served to attend as ordered. Justice required setting aside the judgment so the dispute could be heard on its merits, but on terms as to costs.
Legal principles established
#- A judgment entered without service of the hearing notice on the correct party, resulting from erroneous interchange of the parties, will be set aside notwithstanding the judgment debtor's prior default
- Service and triable issues are assessed on a balance of probability, and admissions by a deponent may establish service even where service is denied
Court orders
#- 1.The judgment delivered on 12.02.2013 and all processes flowing from it are set aside
- 2.The respondent shall pay in any event the claimant's costs of the case up to the date of the ruling
- 3.The respondent shall file and serve the memorandum of response and copies of all relevant documents by close of 24.05.2013
- 4.The claimant is at liberty to file and serve a reply to the memorandum of response by close of 31.05.2013
- 5.Parties to agree upon a convenient mention date for directions on the hearing of the case
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court over a memorandum of claim; rules of the court on service and setting aside judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS, HOSPITALS AND ALLIED WORKERS (KUDHEIHA WORKERS) V B.O.G GILGIL DAY SECONDARY SCHOL [2013] KEELRC 334 (KLR)", Case Analysis (2013). Cause No 5 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/334/eng@2013-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.